FREE ESSAY ON HATE SPEECH ON THE INTERNET

HATE SPEECH ON THE INTERNET

I. Hate Speech on the Internet
Generally, hate speech receives constitutional protection and is not prosecuted that is
why there are relatively few court cases addressing this issue on the Internet. For this
reason, sites containing speech discriminating people because of their race or sexual
inclinations are available on the Internet. These include the "Ku Klux Klan," "Nazis,"
"White Socialist Party," "Skinheads" or "Aryan Nation," for example, which speech is not
directed to any person in particular, thus not punishable. In addition, the nature of
this medium makes it difficult to trace the perpetrators of hate crime indeed, Web sites
are easily relocated or abandoned when legal problems arise. In RAV v. St Paul , the
Supreme Court defined that speech leading to racially motivated violence could be
punished. Hence, threatening private message involving racial epithet sent over the
Internet to someone, as well as a public message on a Web site, are legally actionable.
II. The Internet
At the dawn of the new century, the rise of new media such as the Internet, seem to
create new issue about the limitations of free speech. However the chore of some free
speech cases remains the same as in the past 100 years. 
The Internet is an outgrowth of a military program called "ARPANET," which began in 1969.
The ARPANET no longer exists, and today the Internet is an international network of
interconnected computers. The Internet is "a unique and wholly new medium of worldwide
human communication." People can access the Internet from many different sources, several
major national "online services" such as America Online, or CompuServe provide access to
their own networks as well as broader links to the Internet. The Internet offers a wide
variety of communication and information methods, such as "e-mail," automatic mailing
list services ("listservs"), "chat rooms," or the "World Wide Web." These different tools
can be used to transmit text, sounds, pictures, or animated video images. The environment
as a whole is commonly called the "cyberspace," because it does not belong to a
particular geographical location. 
It is "no exaggeration to conclude that the content on the Internet is as diverse as
human thought," said a District Court. Hence, the Internet is in itself, a "market place"
of ideas, which concept was once adopted by the Supreme Court. An important difference
between the Internet and broadcasting, for example is that users need to type the address
of a known page or enter one or more keywords into a "search engine" to locate a site.
This characteristic makes it a less intrusive medium than broadcasting, since users need
to actually look for the information they want. 
The Web is like a large library where millions of publications are available. The problem
however, is that anyone can become a publisher and use this huge platform to address a
worldwide audience. This characteristic makes it easy for extremist groups, for instance,
to safely propel their message to the entire world. It allows them to communicate with
other bigots, to promote their doctrine and to recruit people, while remaining anonymous.
These groups however, have the right to express their ideas, even if they are offensive.
Litigation occurs when an individual targets or harasses someone else because of his/her
race, religion, or sexual inclinations, for instance. "Real life" cases have set
precedents that also apply to the "cyberspace," as some online hate speech cases
discussed below show it. 
While extremists have the right to create Web pages that contain offensive speech, users
have means to deny them access to their homes. Indeed, filters and software are available
for parents who wish to block this kind of material. These filtering tools provide users
with a strong weapon, allowing the Internet to remain as free as possible from
governmental regulations. 
III. Hate Speech and The First Amendment
The First Amendment states that "Congress shall make no law ... abridging the freedom of
speech..." Every American has therefore the right to express his/her opinion even if the
statement is offensive. The United States Supreme Court once adopted the concept of "a
market place of ideas," which laissez-faire policy allows good and bad ideas to freely
compete. The logic is that harmful speech will ultimately be rejected and that it is
better to tolerate a little harm for the sake of greater freedom. Indeed, the same tools
used to censor hate speech, for instance could be used to restrict reasonable ones.
Hence, it is rare that federal, state, and local government intrude upon this citizen
right. In order for them to restrict speech they need to prove a compelling interest in
doing so. Thus, they must act under the "strict scrutiny" standard and demonstrate that
their goal is compelling and that the approach is narrowly tailored to meet this goal.
Hence, the government has relatively few means to impose restrictions on the content of a
speech. However, it can easily regulate the time, place and manner in which a speech is
delivered, regardless of its content. These elements pertain to context, which concept is
hard to apply to the Internet.
IV. Limitations of the First Amendment: Unprotected Speech
Offensive speech tends to fall under the First Amendment's protection, but in some cases
the Supreme Court ruled differently. Indeed, the following cases all set precedent also
applying to the Internet.
In the case of Chaplinsky v. New Hampshire , Walter Chaplinsky, a Jehovah's witness,
distributed literature in the street of Rochester, N.H., when he called someone a "damned
fascist." He was arrested under a state law prohibiting speaking in "any offensive,
derisive or annoying word to any person who is lawfully in any street or other public
place." Chaplinsky appealed, but the Supreme Court ruled that his speech contained
"fighting words," which definition is "words, which by their very utterance inflict
injury or tend to incite an immediate breach of the peace." In the decades since this
1940 decision, the Court has limited its effects to the most challenging and
confrontational of words spoken in a face to face encounter and likely to lead to
immediate fighting. 
In Brandenburg v. Ohio, the defendant, a leader of a Ku Klux Klan group, was convicted in
an Ohio state court for having said "Bury the niggers" and "the niggers should return to
Africa" at a rally. In the Brandenburg case, the Court distinguished between words and
action. The test for the speech "clear and present danger" was not met, because it did
not give a prospect of immediate action, and was therefore protected by the First
Amendment.
In R.A.V v. City of St. Paul , the defendant Robert A. Victoria, along with other
teenagers, burned a cross in a black family's backyard. Although this conduct could have
been punished under any of a number of laws, R.A.V.' s action was judged under the
"fighting words" category of speech, which consistently with the First Amendment, can be
regulated. The ordinance makes it a crime to use "fighting words" when knowing that they
will "arouse anger, alarm or resentment in others on the basis of race, color, creed,
religion or gender." The Minnesota Supreme Court ruled that the action was not protected
by the First Amendment due to the precedent set in the Chaplinsky v. New Hampshire case.
It also concluded that the ordinance was narrowly tailored and served a compelling
interest in protecting the community against bias-motivated threats to public safety.
Thus, in R.A.V., based on the precedent set in Chaplinsky v. New Hampshire the court
decided that race-based fighting words could also be punished, but the Supreme Court
reversed the conviction. Justice Scalia stated that "The First Amendment does not permit
St. Paul to impose special prohibitions on those speakers who express views on disfavored
subjects." 
In 1989, in Kenosha, Wisconsin, a group of young black men and boys, including Mitchell,
beat a young white man, inspired by a scene from the movie "Mississippi Burning." The boy
was rendered unconscious and remained in a coma for four days. Mitchell was convicted of
aggravated battery, which offense usually carries a maximum sentence of two years
imprisonment. In Wisconsin v. Mitchell, the jury found that Mitchell had intentionally
selected his victim because of his race, and the sentence for his offense was increased
to seven years. The Court rejected Mitchell's claim that it was unconstitutional to
punish his ideas. Relying on R. A. V. v. St. Paul, the Court held that the statute was
directed at the defendant's conduct that is committing a crime. Hence, the statute did
not focus on Mitchell's bigoted ideas, but rather on the actions resulting from these
thoughts.
V. Hate Speech on the Internet and Court Decisions
The precedents set by the above cases have also applied to the Internet in Court's
ruling. There are relatively few cases involving hate speech on the Internet but the
following show the limits of free speech in regard to this new medium. 
In United States v. Machado the Court held that transmitting racially motivated harassing
speech over the Internet was a violation of the law. In 1996, a student at the University
of California, Richard Machado, 21, sent a threatening e-mail signed "Asian Hater" to 60
Asian students. In this message, he said he hated Asians and wanted to kill them all.
Although the e-mail was sent from an anonymous account, Machado was questioned by the
campus police and admitted being the author of the messages. In August 1997, the Central
District of California charged Machado with violating a law that prohibit interference
with a Federally protected activity, attending public college, because of race, color,
religion or origin. The first trial ended in February 1998, and the jury found Machado
guilty of violating the Asian student civil rights. At the second trial there was
evidence that Machado had sent other threatening messages to campus staff prior to the
"Asian Hater" one. He was sentenced to one year in prison. Machado was sentenced under
Federal law because his messages were motivated by racial bias and aimed at people
engaged in a Federally protected activity.
A similar case that happened in 1999 is United States v. Kingman Quon. Quon sent a
hateful e-mail to Latinos faculty members and students both at the California State
University in Los Angeles and at the Massachusetts Institute of Technology, in Boston.
The messages stated that he would "come down and kill" them, and that Latinos were "too
stupid to get jobs." He pleaded guilty and received a two-year sentence.
In 1999, the case Commonwealth of Pennsylvania v. ALPHA HQ, involved a complaint against
a Ryan Wilson, owner of a white supremacist Web site, ALPHA. He was charged for terrorist
threats, harassment, and ethnic intimidation. He placed harassing material on the
Internet that involved employees of the Reading Berks Human Relations Council. One of the
pictures on ALPHA' s Web site showed a bomb blowing up the office of Bonnie Jouhari, an
employee who was involved in anti-hate activities. Next to the image a comment stated
that she should be hung from a tree. Due to these insults, the white supremacists were
ordered to remove their web page from the Internet. In addition Stormfront, Inc., the
Internet company that provided ALPHA HQ its domain name service, was also named in the
case and was ordered not to provide any more service. Wilson did not contest the charges
and the site was removed from the Internet. This case set a precedent where a judge
ordered a Web site to be shut down because the information on it was harmful. 
The Brandenburg standard makes it hard to punish online hate speech. Indeed, the call for
lawless action can be proved but the imminent action resulting from it is hard to
demonstrate. Thus, on the Internet people can post messages on bulletin board, for
instance, calling for action, but as long as the message does not provoke violent
reactions, it will be protected. 
Regardless, when a person is targeted because of race, religion or sexual orientation the
perpetrator can face enhanced penalty. If there is evidence that a racist thought, for
instance, led to a racist assault, as in Wisconsin v. Mitchell, and that the victim was
picked according to his/her race, the statement receives no First Amendment protection.
The same is true for hateful views expressed on the Internet. 
VI. Internet Service Provider's liability: 
The Communication Decency Act
In an attempt to protect children from indecent material, Congress passed the
Communications Decency Act (CDA) in 1996 as part of the Telecommunications Act of 1996.
It made it a crime to send or display "obscene or indecent" material to minors on the
Internet. As President Clinton signed the bill, the American Civil Liberties Union
challenged it. In 1997, the Supreme Court had its first case about cyberspace, Reno v.
American Civil Liberty Union. The CDA was declared too broad, since it banned offensive
material, in general. The Court had to admit that the Internet was a unique medium that
could not be regulated like broadcasting. However, the provisions included by Congress
concerning the liability of Internet Service Providers remained unchanged. The section
states that: "no provider or user of an interactive computer service shall be treated as
the publisher or speaker of any information provided by another information content
provider." Because hate speech on the Internet needs to be posted on a Web site, which in
turns has to be hosted by a provider, the question of ISP's liability is important. Even
in cases involving child pornography, libel and defamation the provider America Online
was not found legally actionable by the courts. 
VII. AOL Case Study
The service provider America Online (AOL) was involved in tree major cases, where Section
230 of the Communication Decency Act, which prohibit Internet Service Providers to be
held responsible for the content of messages posted on their network, was upheld. 
In 1994, Richard Russell photographed and videotaped John Doe (fictive name) and two
other minors engage in sexual activity with each other and with him. He then used an
America Online (AOL) bulletin board to sell the photos and videotapes, without actually
showing the images on the Internet. In 1997, John Doe's mother, Jane Doe (fictive name),
sued Russell and AOL, asking the court to order Russell and/or AOL to pay her and her son
$8 million to compensate them for their emotional injuries. 
In Doe v. America Online, Jane Doe claimed that AOL was negligent because it knew that
Russell and other pedophiles used AOL to market and distribute child pornographic
materials. The issue in this case was "whether a computer service provider with notice of
a defamatory third party posting is entitled to immunity under section 230 of the CDA."
AOL asked the trial court to dismiss Doe's complaint, arguing that AOL has immunity from
this lawsuit under a federal statute and the Court ruled in the ISP's favor. 
In Blumenthal v. Drudge , Matt Drudge, a cyber-columnist, wrote an article about domestic
violence between Sydney Blumenthal (an aide of President Clinton) and his wife. Although
Drudge retracted the story and apologized, Blumenthal filled a libel suit against him and
AOL. In spite of the fact that the article was posted on Drudge's site within AOL's
network and the U.S. District Court judge dismissed AOL from the suit, because it was
protected by Section 230 of the DCA. 
In Zeran v. America Online, the issue was whether AOL would be held liable for being slow
to remove a series of allegedly defamatory messages posted on its bulletin board by an
unidentified third party. An anonymous message posted on AOL's message board wrongly
stated that Kenneth Zeran was selling T-shirts with offensive slogans about the Oklahoma
bombing. Because Zeran' s phone number was listed on the message, he received death
threats and insulting calls. He then sued AOL for taking too long to remove the initial
message, as well as the ones that followed, and for failing to post a retraction. The
U.S. District Court for the Eastern District of North Carolina cited Section 230, held in
AOL's favor, and eventually denied Zeran' s appeal. In the court's opinion the purpose of
Section 2340 was precisely to protect freedom of speech on the Internet, since: "It would
be impossible for service providers to screen each of their millions of postings for
possible problems." The Court of Appeals based its ruling on Section 230. 
Although these three cases are not linked to hate speech per se, they are relevant in
showing to what extent it is hard to regulate the Internet, since service providers are
never held liable for the content of the messages found on their servers. Nevertheless,
ISPs have a choice in regulating the material located on their network, hence, most of
them decide to obey the law and many ban libelous or defamatory speech, for instance. As
private corporations, these service providers have the right to expulse customers or to
delete the content of their messages. 
VIII. Internet Regulations of Hate Speech
So far, most Internet regulations are designed to protect children, making it illegal to
transmit child pornography, for instance. However, some states have legislation punishing
harassment and fighting words on the Internet. Two examples are the Connecticut and the
Georgia's Internet Laws, which respectively prohibit harassment and terrorist threats.
These laws do not prevent people from having personal opinions, regardless of what they
may be, but rather to stop criminal activity over the Internet. 
IX. Blocking Hate Speech: Filters 
As discussed above, ISP's can chose to host or not a given Web site however, users can
also decide for themselves what they want to be exposed to. By using a filter, they can
deny their computer access to certain Web sites. The World Wide Web Consortium, an
international computer industry organization, proposed a technology called Platform for
Internet Content selection (PICS). These programs rate the content of a site based on
various criteria, such as violence, language, or nudity and then allow access or not. 
These filtering software when used by private individuals or corporations, do not involve
any governmental regulation and therefore do not fall under the First Amendment. But in
the Communication Decency Act, the Congress encourages parents to use them, in order to
protect their children. The use of filters in public places such as libraries or schools
has, however, raised legal issues, since these governmental institutions are not allowed
to ban constitutionally protected speech. They are only allowed to screen out
threatening, obscene or libelous speech, but rarely hate speech. 
Most of the filters focus on screening out pornography, but some like SurfWatch, do block
hate speech and prevent access to site that discriminate individuals based on their race
or religion, for instance. 
X. Discussion
Combating online extremism presents enormous technological and legal difficulties. Even
if it was electronically possible to keep sites off the Internet, the global nature of
this medium makes legal regulation almost impossible. In addition, in the United States,
the First Amendment guarantees the right of freedom of speech to everyone, even people
with offensive opinions. As seen in the cases discussed above, if a hateful speech does
not lead to an action, it is hardly punishable. Furthermore, ISPs can host harmful
material without being held responsible, which leaves it to their goodwill to create a
safe Web environment. 
Internet Service Providers (ISPs), such as America Online, which is based in the United
States, is considered a "common carrier" and as such benefits full protection.
Furthermore, they are not legally responsible for the content of the sites they host, but
it is their decision to host or not hate sites. Some carriers do host haters, while
others have adopted strict terms of service, prohibiting subscribers to use their
facilities for promoting hate. 
Just as an Internet Service Provider can remove a hate site from its servers, private
individuals can remove such sites from their screens. Filtering software products help
people or concerned parents to block offensive material from their home computers. 
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